Human Rights Watch regards the bombing that killed former Lebanese Prime Minister Rafiq Hariri and 22 other individuals as a grave affront to human rights. We therefore welcome the Security Council’s adoption on March 29, 2006 of Resolution 1664 (2006), calling on you to negotiate an agreement with the Government of Lebanon to establish a “tribunal of an international character” to try all those responsible for this crime (hereinafter, the “Hariri Tribunal”).
April 27, 2006
Secretary-General Kofi Annan
Executive Office of the Secretary-General
U.N. Headquarters #S-3800
New York, NY 10017
Your Excellency,
Human Rights Watch regards the bombing that killed former Lebanese Prime Minister Rafiq Hariri and 22 other individuals as a grave affront to human rights. We therefore welcome the Security Council’s adoption on March 29, 2006 of Resolution 1664 (2006), calling on you to negotiate an agreement with the Government of Lebanon to establish a “tribunal of an international character” to try all those responsible for this crime (hereinafter, the “Hariri Tribunal”).
We particularly welcome the Security Council’s explicit request that such a tribunal be based on the “highest international standards of criminal justice.” Respect for these standards is essential to ensure that the tribunal is seen as legitimate and credible in Lebanon, in the region, and in the world.
As an organization with extensive experience monitoring and assisting tribunals of an international character, we would like to highlight a number of issues that we believe need to be addressed in negotiations between the United Nations and the Lebanese government in order to ensure that the “highest international standards of criminal justice” are attained.
A. Jurisdiction of the Hariri Tribunal
Security Council Resolutions 1644 (2005) and 1664 (2006) imply that the jurisdiction of the Hariri Tribunal may be limited to the bombing on February 14, 2005 that killed former Prime Minister Hariri and 22 others. Human Rights Watch urges you to recommend to the Security Council that it retain the option of expanding the subject matter jurisdiction of the Hariri Tribunal to the 14 other attacks perpetrated in Lebanon since October 1, 2004 and listed in para. 55 of the Third Report of the International Independent Investigation Commission, if the Commission’s investigation determines that there are linkages between some or all of these attacks and the attack that killed former Prime Minister Hariri.
Resolution 1644 (2005) raised the possibility of expanding the investigation of the International Independent Investigation Commission (“IIIC”) to include all “terrorist attacks perpetrated in Lebanon since October 1, 2004” (operative para.7). While the Commissioner of the IIIC, Serge Brammertz, noted in his March 15, 2006 report to the Security Council (para. 79), that “[a]t this stage […] it is too early to conclude or even make an assumption that any of the 14 other cases are linked either with each other or with the Hariri case,” he also indicated that the IIIC remains actively engaged in evaluating any links between the 14 cases and the Hariri assassination. The negotiations over the jurisdiction of the Hariri Tribunal should not preclude the possibility of prosecuting those other crimes that the continuing investigations may determine to be linked to the Hariri assassination.
B. Substantive Offenses
In his March 29, 2006 report to the Security Council, the Secretary-General noted that “consultations with the Lebanese authorities made it clear that applying Lebanese substantive criminal law would play an important role in ensuring that the tribunal would have a national dimension.” At this point, it is still unknown what specific charges will be brought against the accused.
Our understanding from the Third Report of the IIIC of March 15, 2006 (para. 49) is that the provisions of Lebanese criminal law which may be relevant to the jurisdiction of the Tribunal include Articles 270, 271, 314, 549 and 549/201 of the Penal Code and Articles 2, 4, 5 and 6 of the “Law dated January 11 1958”. We note that the "Law dated January 11, 1958" was introduced in 1958 as a temporary measure to suspend certain provisions of the Penal Code. Its main goals were to (i) introduce harsher sentences (and notably the death penalty) with respect to certain crimes that may lead to civil war or sectarian violence in Lebanon and (ii) give the military courts (as opposed to the criminal courts) jurisdiction over such crimes.
While we agree that Lebanese criminal law should be a key part of the substantive law applied by the Tribunal, Human Rights Watch urges careful scrutiny of the potentially relevant Lebanese laws to ensure that they can be interpreted and applied in a manner which is consistent with international fair trial standards. In particular, we are concerned by the fact that the “Law dated January 11 1958” is an extraordinary law that appears to have been adopted as a temporary measure at a controversial time in Lebanon’s history.
If the IIIC concludes that the attack of February 14, 2005 forms part of a wider policy or plan to attack civilians due to their political activities, the attack may well amount to a crime against humanity. Consideration should therefore be given to incorporating appropriate international crimes, as defined in the Rome Statute of the International Criminal Court (“ICC Statute”), into the substantive jurisdiction of the Hariri Tribunal. The possibility of prosecuting the attack of February 14, 2005 as part of a wider, systematic, attack should not be foreclosed at this stage.
C. Judges and Prosecutors
The impartiality, independence, and competence of judges and prosecutors are fundamental elements of trials that comply with international fair trial standards.1 This was clearly recognized by your report to the Security Council on March 21, 2006 pursuant to paragraph 6 of Resolution 1644 (2005).
The appearance of impartiality is as important as actual impartiality where a trial concerns a highly-politicized issue such as the assassination of former Prime Minister Hariri. Accordingly, it is our view that the participation of international prosecutors and judges alongside Lebanese prosecutors and judges is essential. Accordingly, we welcome the Lebanese authorities’ position calling for “significant international participation” in the staffing of the Hariri Tribunal, and urge you to recommend that judicial panels be composed of a majority of international judges. It is similarly imperative that international judicial personnel of the highest standards of professionalism and integrity be appointed. We suggest that individuals with direct experience in criminal trials, and preferably in trials before international criminal tribunals or mixed national-international tribunals, be appointed.
Judges must be free to decide cases before them without interference or pressure from any government, international institutions, public opinion, or the media. Political authorities must not undermine the perceived impartiality of the tribunal by prejudging the assessment of the facts by the competent judicial authority – especially since there will be extensive media coverage of the Hariri Tribunal’s operations.
The ability of the Prosecutor to mount a focused prosecution strategy will be crucial to ensure the effectiveness of the trials. We believe that permitting non-Lebanese nationals with relevant experience to be appointed as prosecutors and co-counsel will enable Lebanese prosecutors to complement their knowledge and experience with international expertise gained from prosecuting serious crimes of terrorism.
D. Rights of the Accused
Given the politically charged nature of the crime, the trials are likely to elicit powerful emotions. As a result, the Hariri Tribunal will need to take every precaution to ensure that the rights of the accused are safeguarded. We believe that the Hariri Tribunal should adopt and apply the highest standards of international human rights in its treatment of accused, including those standards articulated in the Universal Declaration of Human Rights; the ICCPR; the U.N. Standard Minimum Rules for the Treatment of Prisoners adopted by the U.N. Economic and Social Council in 1957; and the U.N. Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment adopted by the U.N. General Assembly in 1988.
We are encouraged that your report to the Security Council pursuant to paragraph 7 of resolution 1644 (2005) noted that the “drafting of the rules of procedure of and evidence applicable in the tribunal could benefit from the experience gained in the existing international tribunals, giving due consideration to the specific circumstances of the matter at hand.” Based on our work monitoring existing international tribunals, we urge you to consider the following measures:
(i) Setting-up a Defense Office
A fundamental component of a fair trial is “equality of arms.” Equality of arms refers to the principle that every party must be afforded a reasonable opportunity to present his or her case under conditions that do not place the party at a substantial disadvantage vis-à-vis the opponent. In light of the likely significant international support to the prosecutor’s office, adherence to the principle of “equality of arms” requires a similar capacity to assist the defense.
It is as yet unclear how many accused will be brought before the court. However, there are important lessons that can be learned from the experience of other internationalized courts that may well be applicable to the Hariri Tribunal.
Recent international experience has shown the important role that a “Defense Office” plays in protecting the rights of the accused. At the Special Court for Sierra Leone, the head of the Defense Office advocates with the court administration and before the judges on issues relevant to defense representation and fair trials. The office further helps to ensure that defense counsel have adequate support to prepare and present cases. A “Defense Office” was also established at the War Crimes Chamber in Bosnia in the form of a Criminal Defense Support Section, which is generally known by its Bosnian acronym OKO (Odsjek krivicne odbrane), which provides legal assistance to defendants in war crimes cases.
The Defense Office in these institutions also plays the vital role of maintaining a list of qualified counsel who can be assigned to the accused in the event that the accused cannot afford counsel of his or her own choosing, and of providing resources to counsel appointed to the accused.
Consideration should be given to establishing a “Defense Office” along these lines within the Hariri Tribunal. The future Statute of the Tribunal and its Rules of Evidence and Procedure must also ensure that an accused’s basic right to counsel of his or her choosing is sufficiently protected, including where an accused seeks to retain non-Lebanese counsel.
(ii) Ensuring a Right to Appeal Decisions
Fundamental fair trial guarantees require that everyone convicted of a crime has the right of review of his or her conviction by a higher tribunal. Under Lebanese law, decisions passed by the Justice Council – which would potentially have jurisdiction over crimes of this kind – are not subject to appeal. The Statute of the Hariri Tribunal should guarantee the right to appeal by creating a dedicated Appeals Chamber with power to review, affirm and reverse trial chamber decisions as appropriate. We are encouraged by Lebanese Justice Minister Charles Rizk’s reported statement that “the trial will consist of two phases as the international community always requests the possibility to appeal a tribunal's decision.”2
(iii) Abolishing the Death Penalty
Human Rights Watch opposes the death penalty as an inherently cruel and inhumane punishment. The death penalty is permissible under Lebanese law for certain offenses. We are encouraged by reports that Minister of Justice Rizk has indicated that the Hariri Tribunal will not apply the death penalty.3 We urge you to take steps to ensure that the death penalty is not applied. We further hope that the willingness of the Lebanese authorities to put aside the death penalty in this context will encourage them to reconsider its application in Lebanon generally.
E. Witness and Victim Protection
Effective protection and support for witnesses and others at risk due to testimony provided during trials at the Hariri Tribunal will be an essential aspect of the court’s operations. As indicated by Serge Brammertz, the Commissioner of the IIIC, in his March 15, 2006 report to the Security Council, “[t]he ability of the Commission and the Lebanese authorities to keep and attract further potential insider witnesses will depend on the ability to protect them.”4 The experience of other tribunals of an international character strongly suggests that the creation of an adequately resourced witnesses’ and victims’ protection unit within the court administration is an essential component of their successful functioning.
The importance of arrangements for long-term protection and support, including after the Hariri Tribunal completes trials and operations, cannot be overstated. At a minimum, a “Witnesses and Victims Protection Unit” should provide for the national or international relocation of witnesses where appropriate; protection of the witnesses and their family members before, during and after court appearances; protection of witnesses’ personal information, and secure transportation to and from the court. In light of the report by Mr. Brammertz that certain witnesses have on occasion conditioned their cooperation with the IIIC investigation upon the premise that their information not be divulged to the Lebanese authorities, it is important that the administration of such a witness protection program have substantial international involvement and cooperation.5
F. Victim Participation
The bombing that killed former Prime Minister Hariri also killed 22 other individuals and injured 135. Human Rights Watch believes that the victims of the attack on former Prime Minister Hariri should have procedural rights in relation to the proceedings. This position finds support in Lebanese law. As a country with a civil law tradition, Lebanese law recognizes a role for victims in the criminal process in the form of a right to participate in the proceedings as partie civile, with the purpose of obtaining, in the context of the criminal trial, reparations and restitution. This inclusive role for victims also finds support in the ICC Statute, which recognizes the rights of victims to present their views through a legal representative and provides the International Criminal Court with the right to directly awarded reparation.
G. Accessibility, Outreach and Communications
If security concerns ultimately require that the trial be held outside of Lebanon, it is vital that the trials be made accessible and comprehensible to the Lebanese population and wider audiences in the Middle East and elsewhere.
In light of the political sensitivity of issues that may arise in trials before the Hariri Tribunal, and the potential for misunderstanding and misrepresentation of its role, effective outreach about the functioning of the Hariri Tribunal will be crucial. Outreach and communications both promote transparency and comprehension, and will make the work of the Hariri Tribunal relevant to the people of Lebanon. The type of information disseminated as part of an effective outreach strategy includes the Hariri Tribunal’s work product, such as non-confidential indictments, motions, orders and judgments. The extensive outreach program undertaken by the Special Court for Sierra Leone to explain and clarify its activities to the population of Sierra Leone, could be taken as a possible model. The experience of other international tribunals located outside the territory in which the crimes occurred strongly suggests that outreach must form an integral part of a court’s activities, and must be adequately budgeted for in advance planning for the Hariri Tribunal.
H. Impact and Legacy
The Hariri Tribunal has the potential to have a significant impact in building respect for the rule of law in Lebanon and the Middle East region more generally. We recognize that the Hariri Tribunal is not, nor should it be expected to serve as, a national justice reform project. At the same time, Human Rights Watch believes that the Hariri Tribunal has both the responsibility and opportunity to make the most of its limited operations by interacting positively with Lebanon’s national justice system. The potential has been shown through the positive and successful cooperation that has occurred between the Lebanese investigations and the IIIC. Detlev Mehlis, former Commissioner to the IIIC, noted in his report dated October 20, 2005, that “the Lebanese judicial and security authorities […] have proved during the investigation that, with international assistance and support, they can move ahead and at times take the lead in an effective and professional manner.”
In planning for the Hariri Tribunal, consideration should be given to designing mechanisms by which skills, experience, and expert knowledge brought to the court by a variety of international personnel can be shared with Lebanese legal and judicial professionals. Such a process of skill-sharing and mutual learning does not occur automatically; it must be incorporated into the budgeted activities of the court through planning for training programs, professional development seminars, and other structured professional learning opportunities.
Conclusion
An effective prosecution and a fair trial in the Hariri assassination and in related attacks that occurred in Lebanon since October 1, 2004 are essential to fight impunity and to promote accountability in Lebanon and in the Middle East. In an atmosphere of insecurity and political uncertainty, the Hariri Tribunal has the challenge of establishing its credibility with the Lebanese people and the international community. Human Rights Watch has set out several areas that need to be addressed if the Hariri Tribunal is to satisfy the promise of delivering justice.
We stand ready to provide any constructive assistance based on our previous experience with international criminal tribunals and hybrid courts. In particular, we urge that draft texts of the statute and rules of procedure be made publicly available at the appropriate time, to permit comment and feedback from Lebanese civil society, international human rights organizations and other interested parties.
In the interests of stimulating discussion of these issues, we will be sharing this letter with representatives of Security Council members, and making it publicly available in due course.
Yours Sincerely,
Sarah Leah Whitson
Executive Director
Middle East and North Africa Division
Richard Dicker
Director
International Justice
cc: Nicolas Michel, Under Secretary-General for Legal Affairs and UN Legal Counsel
[1]Article 14(1) of the International Covenant on Civil and Political Rights (“ICCPR”), to which Lebanon is a state party, requires that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” The U.N. Guidelines on the Role of Prosecutors, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1990, require under Guidelines 1 and 13(a) that Prosecutors “shall be individuals of integrity and ability, with appropriate training and qualifications,” and should “carry out their functions impartially.”
[2]As reported on April 5, 2006 in the Daily Star; http://www.dailystar.com.lb/article.asp?edition_id=1&categ_id=2&article_...
[3]As reported on April 5, 2006 in the Daily Star; http://www.dailystar.com.lb/article.asp?edition_id=1&categ_id=2&article_...
[4]Third Report of the IIIC of March 15, 2006, para. 47.
[5]Third Report of the IIIC of March 15, 2006, para. 47.
